The Immigration Act 2016: what is in force?
The Immigration Act 2016 is being brought into force in stages.
Extension of criminal offences for illegal working: came into force 12 July 2016
- Extends the criminal offence of employing someone who is known to be an illegal worker, so that this also applies where an employer ‘has reasonable cause to believe’ that a person is an illegal worker. It is, therefore, no longer necessary for the investigating agency to prove that the employer knew that the worker did not have the correct permissions to work in the UK.
- The maximum sentence on indictment for the offence increased from two to five years.
- Makes illegal working a criminal offence in its own right. Individuals found guilty of illegal working could face imprisonment and / or a fine, and their wages could be seized as the proceeds of crime.
- These criminal sanctions are in addition to the civil penalties which can be imposed on employers employing illegal workers: see our earlier blog.
Illegal working closure notices and compliance orders: coming into force 21 November 2016
- A new power is being introduced, intended to deal with repeat offenders, for immigration officers to close premises for up to 48 hours where illegal working is suspected (and the employer cannot provide evidence that right to work checks have been conducted) and the employer has had particular penalties in the past for employing illegal workers.
- Unless the notice is then cancelled, an immigration officer must make an application to the relevant court for an illegal working compliance order, which can, among other things, prohibit or restrict access to the employer’s premises for a period of 12 months (or longer in certain circumstances).
- If the compliance order is not complied with, imprisonment and/or a fine can be imposed.
English language requirement for public sector workers: coming into force 1 December 2016
- From next month public authorities will have to ensure that anyone working for them in a customer-facing role (including agency workers) speaks fluent English. A code of practice has been issued to help public authorities meet their obligations.
- This requirement will not have blanket application in Scotland or Wales as it will only apply to public authorities in so far as they are carrying out functions that relate to matters reserved to Westminster (and will not apply to functions devolved to Scotland or Wales). The code of practice suggests that the fluency requirement would apply, for example, to equality officers working for public authorities in Scotland.
- A person working in a customer-facing role is someone who, as a regular and intrinsic part of their role, must speak to the public in English.
- In assessing whether they speak ‘fluent’ English, they must have ‘a command of spoken English which is sufficient to enable the effective performance’ of their role.
- In Wales, either Welsh or English can be spoken.
- The requirement applies to both newly recruited workers, and those already in post.
- It does not apply to anyone whose work is carried out wholly or mainly outside the UK.
- The code of practice states that public authorities should consider providing training to support their staff meet the requirements of the fluency duty.
- If someone does not meet the necessary language requirement, the code suggests considering adjustments (e.g. reducing the level of contact with the public) or redeployment to a non customer-facing role. Dismissal could be considered ‘as a last resort’.
- Public authorities are required to implement appropriate procedures for dealing with complaints from members of the public.
Immigration skills charge: expected April 2017
- An immigration skills charge will be imposed on employers sponsoring non-EEA nationals who come to the UK under Tier 2 of the points-based system.
- The skills charge will be payable in addition to existing Home Office immigration fees.
- The charge will be set at an annual rate of £1000 per sponsored employee, with a reduced rate of £364 for universities, charities and small businesses (and an exemption for PHD level occupations).
- The aim is to encourage employers to invest in training and development of UK resident workers and reduce reliance on imported labour.
- There is presently no provision for a skills charge to be levied on workers coming from the EEA and Switzerland but the situation may alter post-Brexit.